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Justinian I · The Digest of Justinian §39.3.6.pr-39.3.6.8

Rainwater Action in Co-Ownership and Liabilities by Actor

Passage 6179 of 9271 · Latin

Summary

Ulpian discusses the action for keeping off rainwater, covering cases of co-ownership, the transfer of action with land ownership, and its personal nature. He also explains the scope of the judge's orders and the liabilities depending on who performed the work.

[ULPIANUS libro quinquagesimo tertio ad edictum. ] §39.3.6.prSi tertius uicinus opus fecerit, unde decurrens aqua per fundum primi uicini mei mihi noceat, Sabinus ait posse me uel cum primo uel cum tertio omisso primo agere: quae sententia uera est.
[ULPIANUS libro quinquagesimo tertio ad edictum.] If a third neighbor has made a work, from which running water harms me through the land of my first neighbor, Sabinus says that I can sue either the first, or the third, bypassing the first; which opinion is true.
§39.3.6.1Si ex plurium fundo decurrens aqua noceat uel si plurium fundo noceatur, placuit eoque iure utimur, ut, siue plurium fundus sit, singuli in partem experiantur et condemnatio in partem fiat, siue cum pluribus agatur, singuli in partem conueniantur et in partem fiat condemnatio.
If running water from a land of several persons harms, or if a land of several persons is harmed, it has been approved and we use this rule, that, if the land belongs to several persons, individuals sue for their share and the condemnation is made for their share, or if the action is brought against several persons, individuals are sued for their share and the condemnation is made for their share.
§39.3.6.2Inde quaeritur, si communi agro meo et tuo ex proprio agro tuo aqua noceat, an agi possit aquae pluuiae arcendae: et putem agendum, sic tamen, ut pars damni praestetur.
From this it is asked, if water from your sole land harms our common land belonging to me and you, whether the action for keeping off rain water can be brought. And I think it should be brought, in such a manner, however, that a part of the damage is compensated.
§39.3.6.3Uersa quoque uice si communis ager sit, qui nocet proprio, poterit aquae pluuiae arcendae agi, ut quis damnum consequatur, sed in partem.
Conversely also, if it is the common land that harms the sole land, the action for keeping off rain water can be brought, so that one may recover the damage, but only for a share.
§39.3.6.4Si quis prius, quam aquae pluuiae arcendae agat, dominium ad alium transtulerit fundi, desinit habere aquae pluuiae arcendae actionem eaque ad eum transibit, cuius ager esse coepit: cum enim damnum futurum contineat, ad eum qui dominus erit incipiet actio pertinere, quamuis, cum alterius dominium esset, opus a uicino factum sit.
If someone, before bringing the action for keeping off rain water, has transferred the ownership of the land to another, he ceases to have the action for keeping off rain water, and it will pass to the person whose land it has begun to be; for since it involves future damage, the action will begin to belong to him who will be the owner, although the work was made by the neighbor when it was under the ownership of another.
§39.3.6.5Aquae pluuiae arcendae actionem sciendum est non in rem, sed personalem esse.
It must be known that the action for keeping off rain water is not in rem, but personal.
§39.3.6.6Officium autem iudicis hoc erit, ut, si quidem a uicino opus factum sit, eum iubeat restituere damnumque sarcire, si quid post litem contestatam contigit: quod si ante litem contestatam damnum contigit, tantum opus restituere debebit, damnum non sarciet.
The duty of the judge, moreover, will be this, that, if indeed the work was made by the neighbor, he should order him to restore it and to make good the damage, if any occurred after the joinder of issue (litis contestatio); but if the damage occurred before the joinder of issue, he will be bound only to restore the work, and will not make good the damage.
§39.3.6.7Celsus scribit, si quid ipse feci, quo tibi aqua pluuia noceat, mea impensa tollere me cogendum, si quid alius qui ad me non pertinet, sufficere, ut patiar te tollere.
Celsus writes that, if I myself have done anything by which rain water harms you, I should be compelled to remove it at my own expense; if someone else who is not under my authority has done it, it is sufficient that I tolerate you removing it.
sed si seruus meus fecerit, aut is cui heres sum hoc fecit, seruum quidem noxae dedere debeo: quod autem is cui heres sum fecit, perinde est, atque si ipse fecissem.
But if my slave has done it, or the person whose heir I am has done this, I ought indeed to surrender the slave for damage (noxae deditio); on the other hand, what the person whose heir I am did is just as if I myself had done it.
§39.3.6.8Aestimationem autem iudex faciet ex rei ueritate, hoc est eius damni, quod apparuerit datum.
Moreover, the judge will make the valuation based on the truth of the matter, that is, of the damage which has clearly been caused.

Notes

  1. §39.3.6.promisso primo — An ablative absolute meaning 'the first [neighbor] having been bypassed.' It indicates that even when the water flows through the first neighbor's land, one can directly sue the third neighbor who made the work, bypassing the intermediate owner.
  2. §39.3.6.1in partem — Meaning 'for a share' or 'proportionately.' It indicates that when the land is held in common (co-ownership), the rights and liabilities of individual co-owners are split according to their respective shares.
  3. §39.3.6.4cum enim damnum futurum contineat — The clause with `cum` followed by the subjunctive `contineat` expresses cause. It explains the legal basis that since the action for keeping off rainwater aims at preventing future potential damage, the standing to sue belongs to the person who is the owner of the land when the damage threatens, rather than the owner at the time the work was constructed.
  4. §39.3.6.7mea impensa tollere me cogendum — A gerundive construction expressing obligation in indirect speech, with `esse` omitted. `me` is the subject accusative, and `mea impensa` is an ablative of means/expense ('at my own expense'). This indicates that a defendant who personally made the work is obliged to remove it at their own cost.

Cite this passage

Justinian I, The Digest of Justinian §39.3.6.pr-39.3.6.8. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:39.3.6.pr-39.3.6.8

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